Opinion
NO. 2019-CA-000173-WC
05-31-2019
EVERETT JAMIE TURNER AND HON. MCKINNLEY MORGAN, ESQ. APPELLANTS v. PERRY COUNTY SHERIFF'S DEPT.; HON. WILLIAM RUDLOFF, FORMER ALJ; HON STEPHANIE KINNEY, ALJ; AND WORKERS' COMPENSATION BOARD APPELLEES
BRIEF FOR APPELLANTS: McKinnley Morgan London, Kentucky BRIEF FOR APPELLEE, PERRY COUNTY SHERIFF'S DEPARTMENT: Ralph D. Carter Hazard, Kentucky
NOT TO BE PUBLISHED PETITION FOR REVIEW OF A DECISION OF THE WORKERS' COMPENSATION BOARD
ACTION NO. WC-12-68600 OPINION
AFFIRMING
** ** ** ** **
BEFORE: GOODWINE, LAMBERT, AND MAZE, JUDGES. GOODWINE, JUDGE: Everett Jamie Turner ("Turner") petitions for review of an opinion of the Workers' Compensation Board ("the Board") vacating and remanding a decision by the Administrative Law Judge ("ALJ") awarding Turner temporary total disability ("TTD") benefits, permanent total disability ("PTD") benefits, and medical benefits. On appeal, Turner argues the Board wrongfully invaded the ALJ's role as fact finder when it directed the ALJ to make specific findings of fact. For the reasons set forth below, we affirm.
BACKGROUND
During his employment with the Perry County Sheriff's Department ("Perry County"), on September 30, 2012, Turner injured his right shoulder during an elk poaching investigation. While hiking up a mountain, Turner overheated and passed out, causing him to fall backwards. Turner filed a Form 101 on February 18, 2014, and a lengthy litigation of his claim ensued.
This is the third time Turner's claim has been appealed to the Board and the second appeal to this Court. The Board's first decision, entered March 30, 2015, affirmed the ALJ's September 19, 2014 finding that Turner suffered "a work-related fall and neck injury" but vacated the ALJ's findings that "Turner has a 49% impairment rating and is totally disabled" and was entitled to "the award of TTD benefits, PTD benefits, and medical benefits." The Board remanded "for additional findings and entry of a decision in conformity with the views expressed" in the Board's opinion. Turner did not appeal that decision. The Board's most recent opinion describes why the ALJ's original findings regarding maximum medical improvement were invalid:
Dr. Arthur Hughes evaluated Turner on March 26, 2014, and assessed a 49% impairment rating pursuant to the American Medical Association, [Guides to the Evaluation of Permanent Impairment], 5th Edition ("AMA [Guides]"), but stated he had not reached maximum medical improvement ("MMI") by the date of the examination. Also, ALJ Rudloff incorrectly stated in his decision that Dr. Henry Tutt, who had evaluated Turner at Perry County's request, found he had reached MMI. Relying upon the 49% impairment rating, ALJ Rudloff found Turner permanently totally disabled.
This Board determined the impairment rating assessed by Dr. Hughes was invalid because he found Turner had not reached MMI. Regarding this issue, the March 30, 2015 decision from this Board reflects as follows:
That said, for reasons not raised by Perry County, the ALJ's finding of permanent total disability and the award of TTD benefits and PTD benefits are vacated. It is clear from the language in the September 19, 2014, Opinion and Order that the ALJ relied upon Dr. Hughes' 49% whole person impairment rating. However, a finding of permanent total disability requires a permanent impairment rating. KRS 342.0011(1)(11)(c). While Dr. Hughes assessed a 49% whole person impairment rating in his March 26, 2014, IME report, he also opined Turner had not yet reached MMI. Pursuant to the AMA [Guides], Chapter 1.2, "A medical impairment is considered permanent when it has reached maximal medical improvement (MMI), meaning it is well stabilized and unlikely to change substantially in the next year with or without medical treatment." (emphasis in original). Therefore, Dr. Hughes' whole
person impairment rating was not permanent at the time of his IME report. Significantly, the record does not contain a supplemental report by Dr. Hughes.
In the September 19, 2014, Opinion and Order, the ALJ opined that "[b]ased upon the medical evidence from Dr. Tutt, I make the factual determination that the plaintiff Mr. Turner has reached maximum medical improvement." In addition, the ALJ awarded TTD benefits from October 1, 2012, through June 25, 2014, "when Dr. Tutt stated that Mr. Turner reached maximum medical improvement." In order for the ALJ to rely upon Dr. Hughes' 49% impairment rating, he must simultaneously rely upon a physician who determined MMI had been attained on or before the date Dr. Hughes assessed his 49% impairment rating, March 26, 2014.
The ALJ believed Dr. Tutt's testimony supports an MMI date of June 25, 2014, the date of his IME report. However, we are unable to locate a clear articulation of MMI by Dr. Tutt in his June 25, 2014, IME report, his August 1, 2014, supplemental report, or his August 27, 2014, deposition. Notably, in its petition for reconsideration, Perry County argued the record does not contain an opinion from Dr. Tutt regarding MMI.
The Board ordered the ALJ to enter a new order conforming with the directions set forth below, but the ALJ did not follow the Board's order.
Rather than comply with the Board's direction to provide a decision based upon the evidence of record when the claim was submitted, ALJ Rudloff ordered the
parties to submit additional briefs. On June 16, 2015, ALJ Rudloff determined Turner had not reached MMI, and found he was entitled to an award of interlocutory relief, for which he awarded TTD benefits beginning on October 1, 2012, with 12% interest on unpaid amounts, and medical benefits. On July 6, 2015, Perry County filed a petition for reconsideration, arguing ALJ Rudloff's determination did not comply with the direction of this Board. The petition was denied by Order dated July 9, 2015.
Perry County appealed from those orders, and the appeal was dismissed in a decision issued by this Board on August 24, 2015, as an appeal from a decision that was not yet final. This Board specifically noted the ALJ had not complied with the direction provided in the previous decision. Perry County appealed to the Kentucky Court of Appeals, which affirmed the decision from this Board.
Several motions were subsequently filed before ALJ Rudloff and the ALJ, to whom the claim was eventually reassigned. Additional evidence was submitted and a hearing was held on July 13, 2018. The ALJ, relying upon the report of Dr. Stephen Autry who evaluated Turner at his own request on April 12, 2017 (more than two years after the claim was remanded), found Turner had reached MMI. Relying upon the 60% impairment rating assessed by Dr. Autry, the ALJ awarded TTD benefits, PTD benefits, and medical benefits.
Perry County filed a petition for reconsideration on September 28, 2018, again arguing the ALJ exceeded the scope of the direction provided by this Board in its decision remanding for additional determination. The ALJ denied the petition in an Order issued on October 18, 2018.
As noted above, on remand, ALJ Rudloff was directed to make a determination of whether Turner had reached MMI on the evidence of record as it existed on March 30, 2015, the date of the Board's opinion. ALJ Rudloff was not directed, or permitted, to allow for further proceedings, or to allow the introduction of additional evidence.
. . .
In the March 30, 2015 decision, we specifically noted that Dr. Hughes' assessment of an impairment rating was invalid, and did not comport with the direction of the AMA [Guides] because he determined Turner had not reached MMI. ALJ Rudloff was directed to determine, from the record, whether there was any medical opinion establishing that Turner had reached MMI, and what he was permitted to do if there was no such opinion. We noted Dr. Hughes' opinion, standing alone, did not support an award of PTD benefits. The Board's decision was not appealed and therefore became the law of the case.
. . . .
On remand, ALJ Rudloff was granted the limited authority to determine whether a valid impairment rating existed at the time the case was submitted, supported by the appropriate determination of when Turner reached MMI. ALJ Rudloff was not granted authority to conduct additional proceedings, allow the introduction of additional evidence, or grant interlocutory relief.
Rather than follow the directives of this Board, ALJ Rudloff, and later the ALJ, allowed the introduction of additional evidence, allowed the parties to file additional briefs, awarded interlocutory relief, and impermissibly conducted a second hearing. Additionally, ALJ Rudloff and the ALJ made multiple awards of
attorney fees to counsel for Turner, which could be construed to exceed the limits set forth in KRS 342.320.
Here, ALJ Rudloff and the ALJ have ignored the Board's explicit and clear directives. Because ALJ Rudloff and the ALJ exceeded their authority, all orders issued (including awards of attorney fees), evidence submitted, subsequent proceedings, and opinions issued (including those awarding interlocutory relief listed above), and any actions by ALJ Rudloff or the ALJ, conducted subsequent to the March 30, 2015 opinion entered by this Board, are hereby vacated and held for naught.
This appeal followed.
STANDARD OF REVIEW
"The claimant in a workers' compensation proceeding bears the burden of proving each of the essential elements of any cause of action[.]" Miller v. Go Hire Employment Development, Inc., 473 S.W.3d 621, 628 (Ky. App. 2015) (citations omitted). If a claimant is unsuccessful before the Board,
his burden on appeal is infinitely greater. It is of no avail . . . to show that there was some evidence of substance which would have justified a finding in his favor. He must show that the evidence was such that the finding against him was unreasonable because the finding cannot be labeled 'clearly erroneous' if it reasonably could have been made.Special Fund v. Francis, 708 S.W.2d 641, 643 (Ky. 1986). The ALJ, as "fact-finder[,] has the sole discretion to determine the quality, character, and substance of evidence and to draw reasonable inferences from the evidence." Magic Coal Co. v. Fox, 19 S.W.3d 88, 96 (Ky. 2000) (citations omitted). "The function of further review of the [Board] in the Court of Appeals is to correct the Board only where the . . . Court perceives the Board has overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause gross injustice." Western Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992). "The crux of the inquiry on appeal is whether the [ALJ's] finding . . . is so unreasonable under the evidence that it must be viewed as erroneous as a matter of law." Ira A. Watson Dept. Store v. Hamilton, 34 S.W.3d 48, 52 (Ky. 2000) (citing Special Fund, 708 S.W.2d at 643).
ANALYSIS
The only issue before this Court is whether the Board erred in vacating and remanding the ALJ's September 17, 2018 award of PTD, TTD, and medical benefits. Turner argues the Board erred in instructing the ALJ to issue particular factual findings. Conversely, Perry County argues the ALJ failed to properly construe and apply the Board's March 30, 2015 order of remand, which became the law of the case.
Expressing a desire to maintain "the integrity of prior appellate rulings," the Supreme Court of Kentucky has held that such rulings shall be undisturbed on a subsequent appeal in the same case. Ragland v. DiGiuro, 352 S.W.3d 908, 915 (Ky. App. 2010). In Inman v. Inman, 648 S.W.2d 847 (Ky. 1982), our Supreme Court described the law-of-the-case doctrine:
The . . . doctrine is a rule under which an appellate court, on a subsequent appeal, is bound by a prior decision on a former appeal in the same court and applies to the determination of questions of law and not questions of fact . . . it designates the principle that if an appellate court has passed on a legal question and remanded the cause to the court below for further proceedings, the legal questions thus determined by the appellate court will not be differently determined on a subsequent appeal in the same case.Id. at 849. Turner essentially asks this court to overturn the Board's March 30, 2015 opinion even though he chose to forego an appeal at the appropriate time. Granting Turner's request would allow him to relitigate his claim and present evidence clearly omitted in the original adjudication of his claim as evidenced by his submission of a new date of MMI in 2017. See Inman, 649 S.W.2d at 849. Our precedent "precludes the reconsideration" of Turner's claim on his second appeal of the same issue. Id. Because the Board directed the ALJ to make consistent findings of fact in its March 30, 2015 opinion, and Turner did not appeal the Board's decision, the Board's opinion became the law of the case.
Although the ALJs are the finders of fact in workers' compensation cases, their discretion is not unfettered. 803 KAR 25:010 provides the procedural rules applicable to workers' compensation claims. "Although 803 KAR 25:010, § 13(15) permits an ALJ to order additional discovery or proof between the benefit review conference and the hearing upon motion with good cause shown, no regulation anticipates that additional proof will be taken after a claim has been heard, briefed and taken under submission." T.J. Maxx v. Blagg, 274 S.W.3d 436, 438-39 (Ky. 2008). "An injured worker bears the burden of proof and risk of non-persuasion before the fact-finder with regard to every element of a claim[.]" . . . To permit additional proof under the circumstances would amount to giving [Turner] a 'second bite at the apple.'" Nesco v. Haddix, 339 S.W.3d 465, 472 (Ky. 2011) (citations omitted). As such, the Board correctly held the ALJ improperly reopened proof when the Board did not order the ALJ to do so.
We agree with the Board that the ALJ should make findings consistent with the Board's March 30, 2015 opinion. Specifically, the Board directed the ALJ to:
provide additional findings regarding his determination of June 25, 2014, as the date of MMI in reliance upon Dr. Tutt's testimony. If the ALJ again finds June 25, 2014, is the date of MMI, Dr. Hughes' impairment rating must be rejected, as it was assessed prior to Turner reaching MMI.
. . .
Consequently, should the ALJ find Turner reached MMI on June 25, 2014, as this Board is unable to locate another impairment rating in the record, there can be no award of PTD benefits or permanent partial disability ("PPD") benefits. At that point, the ALJ must determine if Turner, based upon the medical evidence in the record, sustained a temporary injury, and if appropriate, the
extent to which he is entitled to TTD benefits and medical benefits for any and all injuries. Should the ALJ determine Turner did not sustain a temporary injury, Turner's claim must be dismissed.
However, should the ALJ not find evidentiary support for an MMI date of June 25, 2014, the ALJ must examine the record to determine a different MMI date and also determine whether it predates March 26, 2014, the date Dr. Hughes assessed his impairment rating.
CONCLUSION
For the foregoing reasons, we affirm the decision of the Workers' Compensation Board.
ALL CONCUR. BRIEF FOR APPELLANTS: McKinnley Morgan
London, Kentucky BRIEF FOR APPELLEE,
PERRY COUNTY SHERIFF'S
DEPARTMENT: Ralph D. Carter
Hazard, Kentucky